Chapter 2 (The Constitution) Key Concepts (last amended 8/31/18)

Declaration of Independence – a list of grievances against King George III; purpose of government is to protect natural rights; gov’t needs consent of the people.

Radical ideas embedded in Declaration:

• Natural rights, not divine rule.

• Gov’t requires ; monarch or dictator no longer can no longer rule with absolute authority

• Limited gov’t; national gov’t can do only that which is permitted.

Articles of Confederation – The first governing document of the confederated states drafted in 1777, ratified in 1781, and replaced by the present Constitution in 1789. Some highlights:

• Unicameral (i.e., only one chamber of Congress)

• No executive branch

• No judicial branch

• Needed all 13 to amend the Articles

• Each state got 1 vote on legislative matters (so big and small states treated the same); needed 9 states to approve

• Could borrow, create army, declare war

• Could NOT tax, draft soldiers, or regulate commerce

Shays’ Rebellion – Rebellion led by Daniel Shays of farmers in western in 1786-1787, protesting mortgage foreclosures. It highlighted the need for a strong national gov’t, given the inability under the national gov’t under the Art. Of Confederation to pay for a military that could protect the property owners.

Virginia Plan – Initial proposal at the Constitutional Convention made by the delegation for a strong central government with a bicameral legislature dominated by the big states; proportional representation in each chamber.

New Jersey Plan – Proposal at the Constitutional Convention made by for a central government with a single-house legislature in which each state would be represented equally.

Connecticut Compromise (sometimes called the Great Compromise) – Compromise agreement by states at the Constitutional Convention for a bicameral legislature with a lower house in which representation would be based on population and an upper house in which each state would have two senators. Senators initially elected by state legislatures; changed by 17th Amendment to provide for direct election of Senators, just as we have for Representatives.

Federalists – Supporters of ratification of the Constitution and of a strong central government.

Anti-federalists – Opponents of ratification of the Constitution and of a strong central government, generally; preferred more power vested in the states.

The Federalist – Essays promoting ratification of the Constitution, published anonymously by , John Jay, and in 1787 and 1788.

Federalist 10 — Written (along with all ) to persuade citizens of to adopt the Constitution. Fed 10 deals with the question of how to have a democracy over a large area. Madison’s answer is to pit faction against faction so that no one person or group can tyrannize a minority.

Brutus 1 — Opposed ratification of the Constitution, fearing that it placed too much power in the federal government at the expense of the states. The author also argues that democracies cannot succeed in an area so large that the policymakers don’t know the voters or their issues. Ratification will lead to a large standing army to ensure compliance with the law.

Constitutional Convention – The convention in Philadelphia, May 25 to September 17, 1787; was called to amend the Articles of Confederation; wound up discarding the A of C and came up with the Constitution of the United States.

Principles of the Constitution (and themes that return throughout the course)

• Popular sovereignty (power belongs to the people; gov’t needs consent of the governed to be legitimate; majority rule but minority rights)

Page 1 of 3 o Note ways in which the Constitution limits majority control: House only body that was directly elected; individual rights protected by Bill of Rights and other provisions (habeas corpus, etc.)

• Limited government (gov’t can do only that which is permitted by the people as reflected in the Constitution)

• Separation of power (3 branches — legislative, executive, and judicial — each of which has own powers)

• Checks and balances (each branch has some control over the actions of the other 2)

• Federalism (division of powers between national gov’t and the states)

Federalist 51 – Also written by Madison; outlined need for separate branches with checks and balances (“ambition must be made to counteract ambition”; “[Y]ou must first enable the government to control the governed; and then in the next place oblige it to control itself.”

Overview of the Constitution (read this – as well as all the other review sheets! – in conjunction with the class lecture notes)

• Article 1: The Legislative Branch o Bicameral – (i.e., 2 chambers). We have a bicameral legislature with a House of Representatives and Senate. o Congress has enumerated powers in section 8 (including power to declare war, raise taxes, coin money, regulate commerce) ▪ Regulating interstate commerce has at times been a huge source of power. • Gibbons v. Ogden hugely important for broad reading of the IC clause. ▪ Congress also has power to tax, to borrow, to declare war, etc. o Congress also has , thanks to the Necessary & Proper clause (a/k/a the Elastic Clause or the Implied Powers Clause) which appears at the end of sec. 8: Congress can enact any law that is “necessary and proper” to execute the enumerated powers. ▪ McCulloch v. Maryland reads N&P clause very broadly (holding, in essence, that any action that is useful to Congress in the exercise of an enumerated power is okay). o Qualifications of Senators and Representatives • Article 2: The Executive Branch o Electoral College (each state has same # of electors as it has members of Congress) o Qualifications of the President (35 years old, natural born citizen, resident for 9 years) o Powers (make treaties, appoint officers, etc.) o The “Take Care” clause (president is to “take care” to faithfully execute the laws) o Impeachment (House impeaches, Senate tries) • Article 3: The Judicial Branch o One Supreme Court – mostly appellate jurisdiction (abbreviated “jx”), original jx in a very few cases (in other words, most of the time SCOTUS will hear a case only after a lower court has issued a decision) o Such “inferior” courts as Congress wants • Article 4: o Full Faith and Credit Clause (states honor the laws and rulings of other states) o Privileges and Immunities Clause (guarantees each citizen equal treatment in the states) • Article 6: (federal law preempts conflicting state law) o McCulloch v. Maryland important clarification of the Supremacy Clause: it explained how complete the preemption power is.

Some notable compromises in the Constitution:

Electoral College - Compromise allowing qualified citizens to cast a vote for “electors” who in turn vote for the presidential candidate each elector deems best. Has evolved into a rubber-stamp exercise where electors typically exercise no discretion.

Voting qualification compromise - Punted on issue of whether someone needed to be a property owner in order to vote. Gave states the power to control who is qualified to vote in a national election. If someone is qualified to vote in a state election, they are thereby qualified to vote in the national one.

“Three-fifths compromise” – Compromise between northern and southern states at the Constitutional Convention that said three-fifths of the slave population would be counted for determining direct taxation and representation in the House of Representatives. Gave slave states more Representatives but they paid more taxes, too.

Slave-trade compromise – Slave trade could not be banned for at least 20 years following ratification of the Constitution.

Formal amendment of the Constitution • Proposed EITHER by 2/3 of both houses of Congress or by 2/3 vote at a national convention called by Congress. • Ratified EITHER by ¾ of state legislatures or by ¾ of state conventions. • Most common route: Proposal by 2/3 of both houses and ratification by 3/4 of state legislatures.

Page 2 of 3 • Examples: o Bill of Rights (first 10 amendments; protects freedom of speech, religion, press, right to bear arms, etc.) o the “voting amendments” (15 (slaves), 19 (women), 23 (citizens of the District of Columbia), 24 (no poll tax in federal elections), and 26 (people over 18))

Overview of amendments • 1 - 10: the Bill of Rights • 11: citizen of state A cannot sue state B • 12: each elector in Electoral College has 2 votes, 1 for Prez and 1 for VP • 13-15: the Civil War amendments • 13: no more slavery • 14: defined “citizen” and said no state shall deny any citizen the privileges and immunities that citizens of the U.S. have. Also said no state shall deny equal protection of the laws to any “person” or deny any “person” life, liberty, or property w/o due process of the law. • 15: can’t deny someone right to vote on account of race • 16: fed’l gov’t can tax our income • 17: provided for direct election of U.S. senators • 18 & 21: the alcohol amendments (18 imposed Prohibition; 21 repealed it) • 19: can’t deny someone right to vote on account of sex • 20 & 25: presidential succession, etc. • 22: term limits for president • 23: residents of DC have 3 electoral votes • 24: no poll taxes in federal elections • 26: can’t deny someone right to vote on account of age as long as they’re at least 18 • 27: Congress can’t grant itself an immediately effective pay raise.

The “voting amendments” (i.e., those that expanded or protected the right to vote): 15, 17, 19, 23, 24, and 26.

Informal amendment of the Constitution: Done through — • Passing laws (e.g., Congress creating “inferior” courts) • Executive actions (e.g., the president “waging war” w/o Congressional declaration) • Judicial interpretation (e.g., Marbury v. Madison and judicial review) • Custom and tradition (e.g., reduced importance of Electoral College; “Senatorial courtesy”)

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